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The process of making a valid Will is currently governed by the Wills Act 1837 – but a consultation may see these laws radically change. Chris Dickinson explains.
The Act provides, amongst other things, that a valid Will must be in writing and signed by the testator in the presence of two witnesses, who must also sign in the presence of the person making the Will and of each other.
The Law Commission has been carrying out a consultation since July of this year on whether these laws are outdated and if changes should be made to the way Wills are made.
Some of the key issues being considered are changing the way solicitors assess mental capacity for someone to make a Will, altering the age required to make a Will from 18 to 16, and giving the courts greater flexibility to uphold wills that do not meet the necessary legal requirements. Digital Wills may also be considered in the future.
Whilst some solicitors support in principle the proposal to extend the Court’s discretion to uphold Wills that do not meet existing legal requirements, there is also concern about making changes to laws that are long established and widely understood.
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A Judge has awarded an estranged daughter £30,000 in yet another unprecedented move by the legal system. Our Senior Associate Kerry Hull explains.
Following the Supreme Court’s decision in March of this year in Ilott –v- The Blue Cross & Others when it was thought that the principle of testamentary freedom had been bolstered, His Honour Judge Saffman in Leeds County Court has awarded an estranged daughter £30k of her deceased father’s £240k estate, despite the fact that he made it clear he had disinherited his children in his Will.
The earlier ruling of the Supreme Court had established that “it is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testators wishes cease to be of any weight. They may, of course, be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors.”
Despite the daughter having no contact with her father for several years before his death and the deceased having left a letter explaining why he was disinheriting his 3 children and leaving his entire estate to his friend, HHJ Saffman determined that the daughter’s wish to complete a veterinary course was a ‘maintenance cost’. The Judge was presumably satisfied that the evidence presented in the case was sufficient for the Act to prevail as against the wishes of the deceased.
A half sibling of the daughter, who was unable to work through ill health, was similarly successful having also made a claim under the Act, receiving a settlement of £22k.
MORE INFORMATION
For all enquiries relating to contested probate or Wills, please contact our Contested Wills and Probate Department - our team of expert solicitors will be able to assist. Call on 01708 229444 or email us using the form above.
This article was written by Kerry Hull, a Senior Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2017.
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